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October 19, 2000

Ms. Tenley A. Aldredge
Assistant County Attorney
County of Travis
314 West 11th, Suite 300
P.O. Box 1748
Austin, Texas 78767

OR2000-4058

Dear Ms. Aldredge:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 140637.

The Travis County Attorney's Office (the "county") received a request for copies of all travel records relating to a particular county employee and all calendars maintained by and for that employee for the years 1996 through 2000. You state that the county will be making available a vast majority of the requested records to the requestor. You claim that the submitted information is excepted from disclosure under sections 552.101 and 552.108 of the Government Code. You inform us that you have submitted the actual pages of the employee's calendar that you feel contain information that is excepted under your claimed exceptions, and you have submitted representative samples of the travel records.(1)

First, we will address your argument that the personal portions of the submitted calendar do not fall within the purview of the Public Information Act (the "Act"). Section 552.021 of the Government Code provides for public access to "public information." Section 552.002 of the Government Code defines public information subject to the Act as "information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it." Gov't Code 552.002(a). Information is generally public information within the Act when it relates to the official business of a governmental body or is used by a public official or employee in the performance of official duties, even though it may be handwritten or in the possession of one person. Open Records Decision No. 635 at 4 (1995). A public official's or employee's appointment calendar, including personal entries, may be subject to the Act. Id. The following factors, although this is not an exhaustive list, are relevant to determining whether documents are essentially personal in nature: who prepared the document; the nature of its contents; its purpose or use; who possessed it; who had access to it; whether the employer required its preparation; and whether its existence was necessary to or in furtherance of the employer's business. Id. at 5 (citing In re Grand Jury Proceedings, 55 F.3d 1012, 1014 (5th Cir. 1995)). We have also held that the ratio of personal to work-related entries is relevant to the nature of the document: "As a general rule, the greater proportion of personal entries, the more likely it is that the trier of fact could reasonably conclude that it was prepared, used, and maintained as a personal document." Id at 5 n.5 (quoting In re Grand Jury Proceedings, 55 F.3d at 1014). Further, if information maintained on a privately owned medium were actually used in connection with the transaction of official business, such as recording the substance of work-related appointments after they have taken place, then the information would be subject to the Act. Id at 8.

You state that portions of the requested calendar entries relate to personal, non-business information about this particular attorney. After reviewing the submitted calendar, we find that this requested information appears to be the weekly schedule of appointments for the particular employee. We find that the majority of entries pertain to this particular individual's work-related appointments. It also appears that the calendar was necessary to the business of the individual's employer. You have not provided any arguments to support the fact that the calendar at issue was used and maintained for the individual's personal business. Therefore, we conclude that the calendar consists of "information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business." See Gov't Code 552.002. Accordingly, we conclude that the submitted calendar is subject to the act, and, therefore, we must consider whether your claimed exceptions under sections 552.101 and 552.108 are applicable.

You state that the submitted representative samples of the travel vouchers and specific entries of the calendar contain information that is excepted under section 552.101 of the Government Code. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Section 552.101 encompasses common law privacy, which excepts from disclosure private facts about an individual. Industrial Found. v. Texas Indus. Accident Bd., 540 S.W.2d 668 (Tex. 1976), cert. denied, 430 U.S. 931 (1977). Information may be withheld from the public when (1) it is highly intimate and embarrassing such that its release would be highly objectionable to a person of ordinary sensibilities, and (2) there is no legitimate public interest in its disclosure. Id. at 685; Open Records Decision No. 611 at 1 (1992).

This office has found that an individual's personal financial information not relating to the financial transaction between an individual and a governmental body is excepted from required public disclosure under common law privacy. See Open Records Decision Nos. 600 (1992), 545 (1990). We agree that the personal credit card number that appears in the submitted representative samples of the travel vouchers must be withheld under section 552.101 in conjunction with the common law right to privacy. We note, however, that there is a legitimate public interest in the essential facts about a financial transaction involving a governmental body. Open Records Decision Nos. 600 (1992), 545 (1990), 373 (1983). Consequently, you must release the remainder of the travel vouchers after redacting the credit card number.

However, after reviewing the entries of the calendar that you have marked as excepted from public disclosure under section 552.101, we do not find that these entries contain information that implicates an individual's common law right to privacy. Therefore, the county may not withhold these specified entries under section 552.101 in conjunction with the common law right to privacy.

You also assert that entries of the calendar are excepted from disclosure pursuant to section 552.108(b)(3) of the Government Code. Section 552.108(b)(3) provides:

(b) An internal record or notation of a law enforcement agency or prosecutor that is maintained for internal use in matters relating to law enforcement or prosecution is excepted from the requirements of sections 552.021 if:

....

(3) the internal record or notation:

(A) is prepared by an attorney representing the state in anticipation of or in the course of preparing for criminal litigation[.]

Gov't Code 552.108(b)(3)(A). You state that the attorney at issue made the specified calendar entries in the course of preparing for criminal prosecution of the underlying cases. After review of the specified entries, we find that these entries of the calendar are excepted under section 552.108(b)(3) and may be withheld. The county must release the remainder of the requested calendar to the requestor.

In summary, the county may withhold the credit card number in the representative samples of the travel vouchers under section 552.101 in conjunction with the common law right to privacy. The county may withhold the calendar entries that the county specified as being excepted from public disclosure under section 552.108(b)(3). The county must release the remainder of the calendar and the travel vouchers to the requestor.

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,411 (Tex. App.--Austin 1992, no writ).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to the General Services Commission at 512/475-2497.

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Noelle C. Letteri
Assistant Attorney General
Open Records Division

NCL/pr

Ref: ID# 140637

Encl. Submitted documents

cc: Ms. Leslie Jackson
2112 Palm Vista Drive
Pflugerville, Texas 78660
(w/o enclosures)


 

Footnotes

1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). Here, we do not address any other requested records to the extent that those records contain substantially different types of information than those submitted to this office.
 

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